CCT/Saraki: Unravelling of a tragedy foretold

Today’s topic was originally going to be on the work of the Asset Management Corporation of Nigeria, but as it happens, weekly columnists are often at the mercy of events. Such was the one involving the Code of Conduct Tribunal’s collapsed trial of the Senate President, Olubukola Abubakar Saraki, (Bukola Saraki), a few days ago. That, I am afraid, dwarfs the issue of AMCON in order of importance and urgency. With a whiff of schadenfreude, Saraki’s counsel announced on the doorsteps of the Tribunal: “I told you so”, and Saraki himself issued a statement in which he feels “vindicated” by the ruling. Since then, several column inches have been devoted to the matter in print media, and the airwaves filled with observations from professionals, busybodies and the general public. What has emerged from all the discussions are three things: First, the perception that the Tribunal is biased in favour of Saraki – its chairman is currently under the Economic and Financial Crimes Commission probe. Second, that the trial was politically motivated, and was only pursued on a rebound from Saraki’s sleight of hand in his emergence as the Senate President, and third, that the prosecution was incompetent. My contention is that although one could dissect a grain of truth in each and all of the above, that is not, fundamentally, why the case was lost.

For a start, the question of the Tribunal, or any other tribunal being biased is not a new thing in this country, especially where it concerns politically-charged trials such as this one. The chairman of the CCT would have been damned whichever way the hammer had came down. On the question of political motivation for trials, generally, I have to say, I have never known of the trial of any Politically Exposed Persons, in this country, that has not been laced with ulterior motive of some kind by the power that be. That notwithstanding, if cases were not prosecuted because someone had an ulterior motive behind them, no case involving a PEP would ever come to trial in this country. Political motivation, be it as it may, has little relevance in a court of law, where cases are decided on evidence before a judge or a panel of judges. It is never open to the court to enquire into the motive of the prosecution for bringing a particular case. Judges are there to decide cases on merit, or at least, most of the times.

It may interest the reader to know that, in a murder trial for instance, even where the accused has confessed and pleaded guilty to the charge, the prosecution still has to present all the elements of the offence, wherever possible (the body, murder weapons, location, method, time etc) before a judge, prior to the pronouncement of a guilty verdict. Only in an extremely exceptional situation would a person be convicted of murder based solely on circumstantial evidence. It is no use saying; well, my Lord, the accused had murder in mind when he met the deceased and that he had made a statement to that effect. It follows, therefore, that even if revered state institutions such as the Department of State Services, Economic and Financial Crimes Commission, and all the other intelligence agencies say under oath that in their opinion, the accused before the Tribunal is involved in corrupt practices, it would still not be enough without clear evidence being laid in a court of law. To do otherwise would imperil the liberty of everyone in the land.

In addition to this, in this country, we are accustomed to seeing trial by media. People accused of all kinds of heinous crimes are often paraded in public, the latest being the case of the notorious kidnap gang caught in Lagos last week. This is patently wrong. The prosecution/police get away with this because we do not operate a jury system in this country. A lone judge; not a jury, sits in judgment of the accused in this country. A jury normally consists of 12 ‘ordinary’ men and women within the community in which the accused lives. They hear the case in court, deliberate and give a verdict to the judge, who then pronounces a sentence. We have big barriers to a jury system in Africa generally, but they are not insurmountable. Parade of an accused would almost automatically lead to an application by defence counsel to halt a trial by jury, in particular, as such public show of shaming the accused would be deemed prejudicial to a fair trial.

The EFCC in particular, and the police have the habit of “going public” on high profile defendants in this country. The Saraki case was no exception. In advanced democracies, high profile public figures often take the honourable course of action if and when caught up in any type of public scandal, especially like the one faced by the Senate President; it is called resignation. The question is, is there any such thing as the honourable course in this country? If not, does that mean that our public institutions are bereft of men and women of honour? I would say categorically no, we do have plenty of men and women of honour in our public institutions. People thread the path of honour in advanced democracies when they become embroiled in a public scandal because there is a fundamental belief in the justice system and media reporting to the same degree that there is not here at home. It is therefore churlish of anyone to assume that the course of honour would have been followed in this or similar cases in this country.

Finally, it is said that the prosecution was somewhat “incompetent”, and therefore bungled the case. To this effect, the Chairman of the Tribunal ripped into their presentation by accusing them of all types of elementary errors that even a newly qualified lawyer should not make. This is not as simple as it appears I am afraid. Prosecuting lawyers are only as good as the institutions they are obliged to work with. Our administrative/bureaucratic structure in this country can make even the brightest counsel look weak and ineffectual at times. This is not a latent excuse for tardiness and sloppy presentation, but simply a statement of factual observation.

The real tragedy, therefore, is that our current system of dispensing justice in respect of PEPs is not fit for purpose. This point has been made several times, and it is still worth repeating. Criminal trials of PEPs in this country, and in Africa in general, do not offer the best avenue for neither deterrence nor retribution. It is time to make a paradigm shift to a more robust civil remedy options. This, and details of the academic paper supporting the thesis, was discussed in this column; “EFCC and PEPs: Caught in a cobweb of legalism”, The PUNCH, March 21, 2017. It is available for download. Let every interested party in this malaise liaise and join hands before it is too late.

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